The partisanship myth

ByRonald D. RotundaDecember 15, 2000

WASHINGTON
— When the US Supreme Court decided Bush v. Gore on Dec. 12, it did not divide along partisan lines, no matter what the pundits claimed the next morning. On the constitutional question, the court ruled 7 to 2 that Florida's recount violated the "equal protection" clause - that is, ballots were treated differently in different counties.

Some analysts called the court ruling 5 to 4. But that ignores the fact that two justices in that four-person minority agreed with the majority on the core constitutional issue. They disagreed with the dissent in how remedy the equal-protection violation.

Consider this statement from one of the court's opinions: "I can conceive of no legitimate state interest served by these differing treatments of the expressions of voters' fundamental rights. The differences appear wholly arbitrary." That's David Souter, joined by Stephen Breyer. These two justices, one appointed by a Republican, the other by a Democrat, agreed that the manual recount violated equal protection. Sandra Day O'Connor and Anthony Kennedy, two moderates, and Antonin Scalia, a conservative, along with William Rehnquist and Clarence Thomas, also agreed that Florida's "standardless manual recounts" did not meet "the requirements of equal protection and due process."

The two disagreeing with all of this were also bipartisan: Ruth Ginsburg was appointed by President Clinton, and Stevens appointed by President Ford. They acted in good faith, like their colleagues, but disagreed on the constitutional violation.

The seven-justice majority could not agree on a remedy. Five deferred to the opinion of the Florida Supreme Court, which had stated that the Florida legislature wanted to take advantage of a federal statute that required all recounts to be completed by Dec. 12. These justices accepted what the state court had decided about the legislature. On the other hand, Justices Souter and Breyer were willing to extend the recount until Dec. 18, but only if the Florida court established procedures to make it constitutional.

Some who criticize the decision argue that there was no federal issue. Anyone who saw the televised hearing with Florida Judge N. Sanders Sauls knew that he and the attorneys regularly talked about equal protection, just like the Supreme Court.

While the Florida court spoke vaguely about finding the "intent" of the voter, it was not examining a human being but, in the words of the high court, "scratches on an inanimate object." Because no rules governed this search for "intent," different counties used different rules, which changed over time. If humans instead of machines count the cards, how do you count them where there is no hole, not even a pin prick?

In Palm Beach, if the hand counters saw a card with several punches on it, and a dimple near Al Gore's name, the election officials did not count it because that voter knew how to punch a card and did not punch a hole next to Mr. Gore. The machine worked correctly when it did not read it.

Not so in Broward County. If some of the vote counters saw several clean punches for Democrats and no punch for Gore, not even an indentation, but they saw a "scratch" near his name, they called it for Gore.

During the hand counts, the people were permitted to observe but "they were prohibited from objecting during the recount." What do you do if you think a vote is being counted incorrectly? Apparently you just watch. The Florida court has "the power to assure uniformity" but did not do so. This selective recount violates the Constitution's equal-protection clause because it treats two voters differently, depending on which counties they live in.

Did Florida change the rules after the election? The state attorney general, a Gore elector, argued that "never before the present election had a manual recount been conducted on the basis of the contention that 'undervotes' [ballots with no punches on them] should have been examined to determine voter intent." Both before and after Florida certified Bush as winner, both Florida trial judges ruled against Gore. Ultimately, the Florida high court sided with Gore 4 to 3. So if you count "all the votes," Mr. Gore lost by a vote of 5 Florida judges (all Democrats) to 4. But it's the US Supreme Court that really counts, and their vote was 7 to 2.

Ronald D. Rotunda is a visiting fellow in constitutional studies at the Cato Institute.